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2011(5) RCR(Civ) 629
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
JASWANT SINGH, J
Manjit Kaur - Petitioner
Versus
Darshan Singh and others - Respondents
C.R No.7668 of 2010
Decided on: 28.1.2011
Restoration - Civil Suit - Order 9 Rule 4 CPC, Order 17 Rule 2 CPC - Order 9 Rules 3 & 4, Order 17 Rules 1 & 2 of the CPC
Fact of the Case:
The plaintiff filed a civil suit for possession of land, which was dismissed in default for want of prosecution. The plaintiff filed an application for restoration, which was dismissed by the trial court.
Finding of the Court:
The court found that the trial court wrongly dismissed the application for restoration by invoking the provisions of Order 17 Rule 2 CPC instead of Order 9 Rule 4 CPC. The court set aside the impugned order and directed the trial court to proceed with the case.
Issues: The main issue was the dismissal of the application for restoration and the correct application of the relevant provisions of the CPC.
Ratio Decidendi: The court held that the trial court's adoption of a hyper-technical approach in dismissing the application for restoration was not sustainable. It emphasized the proper application of Order 9 Rule 4 CPC for restoration in cases of dismissal in default.
Final Decision: The petition was allowed, the impugned order was set aside, and the suit was restored with directions for expeditious proceedings.
JASWANT SINGH, J - Present petition preferred by the plaintiff-petitioner under Article 227 of the Constitution is directed against the impugned order dated 4.9.2010 passed by the Civil Judge (Jr.Division), Dasuya whereby an application filed by him for restoration of the suit has been dismissed.
2. Brief facts of the case are that the plaintiff-petitioner filed a civil suit No.76 dated 16.7.1997 against defendants-respondents for possession of land measuring 40 kanal 19 Marlas situated in village Talwandi Dadian District Hoshiarpur as described in the head note of the plaint.
3. It transpires that during the pendency of the suit, none appeared for the plaintiff on 5.11.2005 (P.1) and the suit was dismissed in default for want of prosecution by the learned trial Court. An application (P.2) on the same day i.e 5.11.2005 is purported to have been filed for restoration of the suit but the same has been dismissed by learned trial Court vide order dated 4.9.2010 (P.3).
4. Heard learned counsel for the parties and perused the record.
5. It is argued by learned counsel for the petitioner that learned trial Court has wrongly dismissed the application for restoration by invoking the provisions of Order 17 Rule 2 CPC. It is also argued that there was a sufficient cause explained to the learned trial Court for nonappearance of the counsel as he was busy in another court and the application is filed on the same date.
6. On the other hand, learned counsel for the respondents opposed the submissions made by learned counsel for the petitioner and justified the order dated 4.9.2010 being perfectly sustainable in the eyes of law.
7. The only ground for rejection of the application for restoration by the learned trial Court is that the applicant-plaintiff has failed to satisfied the court that there was sufficient cause of reasons for their non-appearance on 5.11.2005 and merely the fact that the counsel for the plaintiff-petitioner was busy in another courts was not a sufficient cause in view of order 17 Rule 2 © of the CPC.
8. In my opinion, learned trial Court has adopted a very hyper-technical approach while dismissing the application for restoration after a period of five years from the date of its filing. A perusal of the order dated 5.11.2005 reveals that in the civil suit, defendants were already ex parte. There is nothing on record to substantiate that plaintiff-petitioner or their counsel had committed any such default of non-appearance on earlier occasions in this case. So far as the pressing into service the order 17 Rule 2 CPC by learned trial Court is concerned that is in my opinion is whollymisplaced and the relevant provision for restoration is Order 9 Rule 4 CPC and not Order 17 Rule 2 CPC. The relevant provisions of Order 9 Rules 3 & 4 and Order 17 Rules 1 & 2 of the CPC are reproduced hereunder:
“Order IX
1. & 2 xx xx
3. Where neither party appears, suit to be dismissed.-Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
4. Plaintiff may bring fresh suit or Court may restore suit to file.-Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
Order XVII
1. Court may grant time and adjourn hearing.-(1) the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:
(2) Costs of adjournment.-In every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by
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